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R. v. Jordan – Impact on Personal Injury Cases

One of the largest frustrations any personal injury client feels is the length of time it takes to have their matters resolved. Of course, there are lots of factors that can affect the time it takes for a matter to reach a conclusion. Some of those factors include the number of plaintiffs and/or defendants involved in the case, the number of accidents, the complexity of the injuries and the impact of those injuries on the individual plaintiff’s ability to earn a living and engage in a normal life.

There are also institutional delays to getting a claim resolved. There are many rules that apply to civil litigation cases and multiple steps that must be followed before getting to a trial, including: issuing a Statement of Claim and serving it on the defendant, receiving a Statement of Defence, attending examinations for discovery, attending a mandatory mediation, arguing motions, and then, of course, setting the matter down for trial and attending a pre-trial conference.

In the Fall of 2016, the Supreme Court of Canada rendered a decision in R. v. Jordan, which has also created a new institutional barrier to getting injury cases resolved in a timely fashion. The Supreme Court ruling in Jordan created a new framework for determining whether there has been too much delay in getting a criminal matter to trial. The net result of failing to get a criminal matter to trial in a timely matter is, of course, that the matter is thrown out altogether without ever having a full hearing on the merits of the case.

As a result of this decision there have been numerous cases (including cases involving the most serious of crimes, such as murder) across Ontario, and Canada for that matter, that have now been dismissed and the accused has walked free, without a trial.

Why is this decision, in a criminal matter, relevant to the delays in getting a personal injury matter to trial?

The answer is simple. There are only a limited number of resources available in the court system (judges, courtrooms, court clerks and so on) to deal with ALL justice matters, be they criminal, civil, or personal injury. Given the very high risk of lots of criminal matters being tossed out because of delay, the courts have been diverting a lot more resources to getting criminal trials on the docket and heard by a judge. The effect is, matters are not receiving the court attention they also require.

In recent months, as our office has been setting matters down for trial, we have been told that the time to get to a trial is now two and even as much as three years away from the date the matter is set down for trial. In this writer’s view, this delay is unacceptable. I certainly appreciate the criminal justice issues in making sure accused have a right to a fair trail. But, what about injured persons who want a resolution to their matter so they can get on with their lives?

Far too often, someone who has suffered a injury can no longer work. They still have bills to pay, families to feed and cloth and mortgages. If the person cannot work, then they have to rely on an Income Replacement Benefit from the Accident Benefit Insurance, which is often a paltry sum compared to their pre-accident income. In some instances, an injured person may require more medical rehabilitation than what is afforded by their Accident Benefits Insurance. These costs are supposed to be covered by the tort case. Having to wait an additional three years to get to trial, after all the other steps in the litigation, can be down right demoralizing for clients.

In addition to the financial consequences to the delay in trials, there is now a new tactical advantage in favour of the defendants. Since the Jordan decision, our lawyers have noticed a greater reluctance on the part of defence counsel to resolve cases earlier in the litigation process (such as mandatory mediation). It seems that defence counsel can now attempt to dig in their heals on lower settlement amounts because there is increased pressure on plaintiffs to settle at less than ideal numbers in order to avoid waiting an additional three years to get to trial.

There has been lots of debate since the Jordan decision about how to deal with these back logs in the justice system. They are, of course, largely directed at moving the criminal files along. I don’t propose to comment on any proposed changes to the criminal justice system. However, I do say that from an institutional perspective, it is incumbent upon the Attorney General to take greater strides to fill judicial vacancies, and frankly, increase the number of judges sitting on the benches of the Superior Court of Justice.

Personal injury clients have enough stress and anxiety on their plates dealing with their injuries. Our Ottawa Lawyers must make sure that every effort is made to allow injured persons their day in court in a fair and timely manner.